United States v. DeatonUnited States v. Deaton
Before WILKINSON, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by published opinion. Judge MICHAEL wrote the opinion, in which Judge WILKINSON and Judge LUTTIG joined.
OPINION
MICHAEL, Circuit Judge:
This is the second appeal by James and Rebecca Deaton, who were sued by the government under the Clean Water Act (sometimes, “the CWA” or “the Act“),
The Delmarva Peninsula separates the Chesapeake Bay from the Atlantic Ocean. Since 1989 the Deatons have owned an undeveloped, twelve-acre parcel of land located roughly in the center of the peninsula, near Parsonsburg in Wicomico County, Maryland. The parcel slopes gently downhill toward a county road, Morris Leonard Road. A drainage ditch runs alongside the road between the pavement and the Deatons’ property. The Deatons call the ditch the “Morris Leonard Road ditch,” while the Corps calls it the “John Adkins Prong of Perdue Creek.” We will call it the “roadside ditch.” The parties agree that surface water from the Deatons’ property drains into the roadside ditch. They disagree about how much water flows through the ditch, and how consistent the flow is, but they agree on the ditch‘s course. Water from the roadside ditch takes a winding, thirty-two-mile path to the Chesapeake Bay. At the northwest edge of the Deatons’ property, the roadside ditch drains into a culvert under Morris Leonard Road. On the other side of the road, the culvert drains into another ditch, known as the John Adkins Prong of Perdue Creek. Perdue Creek flows into Beaverdam Creek, a natural watercourse with several dams and ponds. Beaverdam Creek is a direct tributary of the Wicomico River, which is navigable. Beaverdam Creek empties into the Wicomico River about eight miles from the Deatons’ property. About twenty-five river miles further downstream, the Wicomico River flows into the Chesapeake Bay, a vast body of navigable water.
The Deatons bought the twelve-acre parcel for the purpose of developing a small (five-lot) residential subdivision. There was a problem, however, because much of the property was poorly drained. In particular, there was a large, low, wet area in the middle where water stood in the winter months and after heavy rainfall. Because of the drainage problem, the Wicomico County Health Department denied the Deatons’ application for a sewage disposal permit. The Deatons then decided to dig a drainage ditch across the property. A technician from the U.S. Soil Conservation Service (SCS) advised Mr. Deaton, however, that a large portion of the property contained nontidal wetlands and that he would need a permit from the Corps before undertaking any ditching work. In early 1990 the Deatons, without seeking a Corps permit, hired a contractor who dug a 1,100-foot ditch that crossed the areas of the property identified as wetlands by the SCS technician. The contractor piled the excavated dirt on either side of the ditch, a practice known as sidecasting.
The Corps learned about the Deatons’ ditching project in July 1990 and promptly initiated regulatory action. The details are discussed in our prior opinion, United States v. Deaton, 209 F.3d 331, 333 (4th Cir.2000). In short, the Corps issued a stop-work order to the Deatons, warning them that their placement of fill material in a wetland violated
II.
A.
The Deatons’ appeal of the district court‘s order denying their motion to reconsider Clean Water Act (or Corps) jurisdiction presents a question of law that we review de novo. See Meekins v. United Transp. Union, 946 F.2d 1054, 1057 (4th Cir.1991). We begin with the statutory and regulatory framework for Corps jurisdiction in this case. Section 404(a) of the Clean Water Act requires a permit issued by the Secretary of the Army, through the Corps of Engineers, for the discharge of fill material into “navigable waters.”
In United States v. Riverside Bayview Homes, 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), the Supreme Court upheld Corps regulations “requir[ing] permits for the discharge of fill material into wetlands adjacent to the `waters of the United States.‘” Id. at 139, 106 S.Ct. 455. Several courts have held that SWANCC limited this holding to wetlands adjacent to traditional navigable waters. E.g., Rice v. Harken Exploration Co., 250 F.3d 264, 268-69 (5th Cir.2001); United States v. RGM Corp., 222 F.Supp.2d 780, 785-86 (E.D.Va.2002); United States v. Newdunn Assocs., 195 F.Supp.2d 751, 763, 767-68 (E.D.Va.2002), appeal pending sub nom. Treacy v. Newdunn Assocs., No. 02-1480(L) (4th Cir.); United States v. Rapanos, 190 F.Supp.2d 1011, 1015-16 (E.D.Mich.2002). The Deatons do not press for that limitation here. They argue instead that the roadside ditch is not covered by the Clean Water Act, which means that their wetlands are not adjacent to any covered water. As a result, the Deatons say, they did not need a permit to discharge fill material into their wetlands. It is undisputed that the Deatons’ wetlands are adjacent to the roadside ditch. Thus, if the ditch is covered, so are the wetlands. Our analysis, then, will focus on whether the Corps has jurisdiction over the roadside ditch.
The Deatons first argue that the Corps‘s tributaries regulation, which interprets the Clean Water Act to reach the roadside ditch, pushes the limits of Congressional authority under the Commerce Clause and thereby raises a serious constitutional question. According to the Deatons, Congress did not give a clear indication that it intended the Act to reach tributaries so far from navigable waters, and therefore we should avoid the question of whether regulation of the ditch is constitutional by holding that Congress did not authorize it under the Act. The Deatons argue in the alternative that even if Congress authorized the Corps‘s regulation of the roadside ditch under the CWA, that authorization is invalid because it exceeds Congress‘s power under the Commerce Clause. The Corps, of course, contends that its assertion of CWA jurisdiction over the roadside ditch through its tributaries regulation,
The regulation reflects the Corps‘s interpretation of the CWA, and the Deatons’ arguments require us to undertake a somewhat complicated analysis. The Deatons begin their first argument by saying that the Corps‘s regulation cannot survive the threshold analysis required by SWANCC: when “an administrative interpretation of a statute invokes the outer limits of Congress’ power,” the interpretation is not entitled to deference under Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), unless Congress gave “a clear indication that [it] intended that result.” SWANCC, 531 U.S. at 172, 121 S.Ct. 675 (citing Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. and Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988)). This requirement, the Court said, stems from a “prudential desire not to needlessly reach constitutional issues and [an] assumption that Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority.” Id. at 172-73, 121 S.Ct. 675. Moreover, “[t]his concern is heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power.” Id. at 173, 121 S.Ct. 675. “Thus, `where an otherwise acceptable construction of a statute would raise serious constitutional problems, [courts] will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.‘” Id. at 173, 121 S.Ct. 675 (quoting DeBartolo, 485 U.S. at 575, 108 S.Ct. 1392).
SWANCC and DeBartolo must be read in light of Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). See Williams v. Babbitt, 115 F.3d 657, 661-63 (9th Cir.1997) (comparing DeBartolo and Rust). In Rust the Supreme Court proceeded to decide the constitutionality of an agency‘s regulations because, while the constitutional arguments against the regulations had “some force,” the arguments did not “raise the sort of grave and doubtful constitutional questions” that would require a clear indication from Congress that it intended to authorize the agency‘s interpretation. Rust, 500 U.S. at 191, 111 S.Ct. 1759 (internal quotation marks and citation omitted). Thus, the Court said, it did not have to “invalidate the regulations in order to save the statute from unconstitutionality.” Id. In sum, when “we do not face the sort of serious constitutional questions `that would lead us to assume Congress did not intend to authorize [the regulation‘s] issuance,‘” we may decide the constitutional question and proceed to the Chevron analysis. Republican Nat‘l Comm. v. Fed. Election Comm‘n, 76 F.3d 400, 409 (D.C.Cir.1996) (quoting Rust, 500 U.S. at 191, 111 S.Ct. 1759).
Congress‘s power over the channels of interstate commerce, unlike its power to regulate activities with a substantial relation to interstate commerce, reaches beyond the regulation of activities that are purely economic in nature. The power to regulate channels of interstate commerce allows Congress to make laws that protect the flow of commerce. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 257, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (upholding congressional power to bar racial discrimination in hotels because this discrimination had a “disruptive effect... on commercial intercourse“); United States v. Darby, 312 U.S. 100, 114-15, 61 S.Ct. 451, 85 L.Ed. 609 (1941) (upholding congressional power to forbid interstate commerce in goods made by child labor because traffic in such goods encourages “competition ... injurious to the commerce“). Some of the power exercised by Congress in enacting the Clean Water Act is grounded in the authority to protect the flow of commerce in “navigable waters as channels or instrumentalities of interstate commerce.” United States v. Wilson, 133 F.3d 251, 256 (4th Cir.1997). See also United States v. Ashland Oil & Transp. Co., 504 F.2d 1317, 1325-26 (6th Cir.1974) (noting hazards to navigation posed by pollution).
The Deatons argue that the power over navigable waters is limited to legislation aimed at protecting or encouraging navigation and the flow of commerce. However, the Supreme Court cases discussing congressional power over channels of interstate commerce make clear that this view is too narrow. Congressional power to regulate the use of commercial channels goes further: “the authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained....” Caminetti v. United States, 242 U.S. 470, 491, 37 S.Ct. 192, 61 L.Ed. 442 (1917) (quoted in Lopez, 514 U.S. at 558, 115 S.Ct. 1624). In Caminetti the Supreme Court held that the Mann Act, which barred the transport of “any woman or girl” in interstate channels for an “immoral purpose” was within congressional authority, even though the defendant‘s conduct — transporting a woman across state lines to “be and become his mistress and concubine” — was entirely noncommercial. Id. at 483, 485, 37 S.Ct. 192; see also Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971) (acknowledging congressional power to regulate “the use of channels of interstate ... commerce which Congress deems are being misused“); Heart of Atlanta Motel, 379 U.S. at 256, 85 S.Ct. 348 (citing Caminetti); cf. Ballinger, 312 F.3d at 1270 (“Congress may regulate any instrumentality or channel of interstate commerce....“); United States v. Horton, 321 F.3d 476, 481 n. 3 (4th Cir.2003) (reading federal kidnapping statute as exercise of congressional power to prevent “misuse” of channels of commerce by a kidnapper trying “to cover up his trail by moving evidence of his crime into a different state‘s jurisdiction“). But cf. United States v. Abdullah, 162 F.3d 897, 901 (6th Cir.1998) (suggesting that a statute enacted under this authority must have as its purpose “to keep open the very avenues by which interstate commerce is transacted“). The Deatons are correct that many cases concerning the power over navigable waters focus on congressional authority to regulate in aid of navigation. E.g., Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713, 724-25, 18 L.Ed. 96 (1865); United States v. Appalachian Elec. Power Co., 311 U.S. 377, 404-05, 61 S.Ct. 291, 85 L.Ed. 243 (1940). But there is no reason to believe Congress has less power over navigable waters than over other interstate channels such as highways, which may be regulated to prevent their “immoral and injurious use[].” Caminetti, 242 U.S. at 491, 37 S.Ct. 192.
It follows that under the Corps‘s interpretation, the Clean Water Act does not invade an area of authority reserved to the states. The power to protect navigable waters is part of the commerce power given to Congress by the Constitution, and this power exists alongside the states’ traditional police powers. “Although States have important interests in regulating ... natural resources within their borders, this authority is shared with the Federal Government when the Federal Government exercises one of its enumerated powers....” Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 204, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999). Cf. Gibbs, 214 F.3d at 499-501 (concluding that the application of the Endangered Species Act to private land does not unconstitutionally interfere with local power over land use or wildlife); GDF Realty Invs., 326 F.3d at 639 (same). The federal decision to regulate the discharge of pollutants into tributaries of navigable waters does not “significantly change[] the federal-state balance.” See United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971).
In sum, the Corps‘s regulatory interpretation of the term “waters of the United States” as encompassing nonnavigable tributaries of navigable waters does not invoke the outer limits of Congress‘s power or alter the federal-state framework. The agency‘s interpretation of the statute therefore does not present a serious constitutional question that would cause us to assume that Congress did not intend to authorize the regulation. Indeed, as our discussion of Congress‘s Commerce Clause authority makes clear, the federal assertion of jurisdiction over nonnavigable tributaries of navigable waters is constitutional.
The thrust of the Deatons’ final argument about the Corps‘s jurisdiction is this: even if the Corps could regulate the roadside ditch without causing a constitutional problem, neither the Clean Water Act nor the Corps‘s regulation extends coverage to the ditch. Here, the Deatons make a two-part argument. First, they argue that even if the Act authorizes the Corps to regulate the nonnavigable tributaries of navigable waters, the roadside ditch is not such a tributary. They say that the ditch does not meet the definition of “tributary” at all or, alternatively, it is not a tributary of a navigable water because water flowing from the ditch must pass through several other nonnavigable watercourses before reaching the navigable Wicomico River. In short, the Deatons are arguing here that the Corps is misinterpreting its own regulation by using the tributaries provision,
This finally brings us to Chevron, and we analyze the Deatons’ statutory and regulatory coverage arguments as follows. We begin with the first step of the Chevron analysis, see 467 U.S. at 842, 104 S.Ct. 2778, and determine whether the Clean Water Act delegates authority to the Corps to decide whether to regulate nonnavigable tributaries. Specifically, we ask “whether Congress has directly spoken to the precise question at issue.” Id. When Congress has not spoken directly, but instead has been “silent or ambiguous” on the issue, it has by implication delegated authority to the agency charged with administering the statute, allowing the agency to clarify the ambiguity or fill the gap. Id. at 843-45, 104 S.Ct. 2778. See also Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 742, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996). If we conclude that the statute is silent or ambiguous, we normally move directly to the second step in the Chevron analysis, see 467 U.S. at 843, 104 S.Ct. 2778, and determine whether the agency‘s regulation reflects a reasonable construction of the statute, id.
In this case, however, we are sidetracked by another issue: the meaning of the regulation itself. The Corps interprets its regulation to cover the roadside ditch, but the Deatons contend that the Corps‘s interpretation cannot be squared with the words of the regulation. As a result of this dispute, we must, before proceeding to Chevron‘s step two, determine what the regulation actually means. Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425, 439 (4th Cir.2003). We give “controlling weight” to an agency‘s interpretation of its own regulation, “unless [the interpretation] is plainly erroneous or inconsistent with the regulation.” Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945). See also Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997); Kentuckians, 317 F.3d at 439; United States v. Hoechst Celanese Corp., 128 F.3d 216, 221 (4th Cir.1997). If the regulation is unambiguous, then what is known as Seminole Rock deference does not apply, and the regulation‘s plain language, not the agency‘s interpretation, controls. Christensen v. Harris County, 529 U.S. 576, 588, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). Once we have determined what the regulation means, we can move on to the second step of Chevron, 467 U.S. at 843, 104 S.Ct. 2778, and decide whether the regulation is based on a reasonable construction of the statute. See Kentuckians, 317 F.3d at 439-40 (combining use of Seminole Rock and Chevron tests).
SWANCC, of course, emphasizes that the CWA is based on Congress‘s power over navigable waters, suggesting that covered non-navigable waters are those with some connection to navigable ones. See SWANCC, 531 U.S. at 167, 172, 121 S.Ct. 675. But we cannot tell from the Act the extent to which nonnavigable tributaries are covered. The statutory term “waters of the United States” is sufficiently ambiguous to constitute an implied delegation of authority to the Corps; this authority permits the Corps to determine which waters are to be covered within the range suggested by SWANCC. See Chevron, 467 U.S. at 843, 104 S.Ct. 2778 (“`The power of an administrative agency to administer a congressionally created ... program necessarily requires ... the making of rules to fill any gap left ... by Congress.‘“) (quoting Morton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974)).
We next look for the meaning of the regulation promulgated under this delegated authority. Before deferring to the agency interpretation under Seminole Rock, we first decide whether the regulation is ambiguous. Christensen, 529 U.S. at 588, 120 S.Ct. 1655. The regulation,
Webster‘s Third New International Dictionary (1993) defines “tributary” as (1) “providing with or serving as a channel for supplies or additional matter” or (2) “one that is tributary to another: as ... a stream.” According to this definition, “tributary” in the regulation would encompass the entire feeder system for a navigable water because even a stream many branches away eventually provides “additional matter” for the navigable water. On the other hand, Webster‘s II New Riverside University Dictionary (1988) defines tributary as “[a] river or stream flowing into a larger river or stream.” Under this definition a watercourse like the roadside ditch appears to be a tributary, but it is not clear that it would be a tributary of a larger river several branches downstream. It could be read to mean that only streams flowing directly into a larger river are the larger river‘s tributaries. The dictionaries thus agree that the roadside ditch is a tributary, but they do not settle the question of whether it is a tributary of a navigable water (here, the Wicomico River), which is what the regulation covers. “The existence of alternative dictionary definitions of the word `[tributary],’ each making some sense under the [regulation], itself indicates that the [regulation] is open to interpretation.” Nat‘l R.R. Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 418, 112 S.Ct. 1394, 118 L.Ed.2d 52 (1992). We conclude that the regulation is ambiguous on the question of how far the coverage of tributaries extends. We therefore turn to the agency‘s interpretation.
Now that we know the meaning of the regulation — jurisdiction extends to any branch of a tributary system that eventually flows into a navigable body of water — we can proceed to step two of the Chevron inquiry: is the regulation “based on a permissible construction” of the Clean Water Act. Chevron, 467 U.S. at 843, 104 S.Ct. 2778. The Deatons rely on a passage from SWANCC to assert that the Corps‘s current jurisdictional interpretation cannot be reasonable. In SWANCC the Supreme Court said that the Corps had “put forth no persuasive evidence that [it] mistook Congress’ intent” when it promulgated the first set of CWA regulations in 1974, shortly after the Act was passed. SWANCC, 531 U.S. at 168, 121 S.Ct. 675. The first regulations were narrow, reaching only navigable waters. See 39 Fed.Reg. 12,115, 12,119 (1974).
We do not read SWANCC to hold that the 1974 regulations represent the only permissible interpretation of the Clean Water Act. Those regulations captured what SWANCC holds to be Congress‘s general intent in enacting the CWA, that is, to exercise its power over navigable waters for the purpose of protecting their chemical, physical, and biological integrity. See SWANCC, 531 U.S. at 166, 172, 121 S.Ct. 675 (citing
Accordingly, if the Corps‘s current interpretation,
III.
The Deatons next argue that the district court erred when it held that the Corps used a correct indicator for wetland hydrology (taken from its Wetlands Delineation Manual) in designating parts of their property as wetlands. The Corps‘s underlying wetlands regulation, which the Deatons do not challenge, defines wetlands as “areas that are inundated or saturated by surface or ground water” and are home to “vegetation typically adapted for life in saturated soil conditions.”
The analysis of the Deatons’ attack on the Corps‘s reliance on the “saturation within twelve inches of the surface” indicator must begin with the Corps‘s wetlands regulation. Again, the regulation,
Finally, the Deatons challenge the District Court‘s remedial order requiring them to fill in the ditch they dug across their property. The Clean Water Act only regulates the deposit of the material dug out of the ditch, not the digging itself. Therefore, the Deatons argue, requiring them to haul the deposited dirt to a non-wetland part of the property is the proper remedy. According to the Deatons, they would not have needed a permit if they had hauled the dirt away when they dug the ditch, so the remedy for their failure to get a permit should go no further than requiring them to do what would have been lawful in the first place.
We review the scope of a remediation order for abuse of discretion. See Dixon v. Edwards, 290 F.3d 699, 718 (4th Cir.2002); see also Sasser v. Adm‘r, United States EPA, 990 F.2d 127, 130 (4th Cir.1993). In evaluating remediation or restoration proposals, courts have considered three factors: (1) whether the proposal “would confer maximum environmental benefits,” (2) whether it is “achievable as a practical matter,” and (3) whether it bears “an equitable relationship to the degree and kind of wrong it is intended to remedy.” United States v. Cumberland Farms of Conn., Inc., 826 F.2d 1151, 1164 (1st Cir.1987). See also United States v. Sexton Cove Estates, Inc., 526 F.2d 1293, 1301 (5th Cir.1976) (Rivers and Harbors Act case); United States v. Bradshaw, 541 F.Supp. 884, 885 (D.Md.1982). Although the district court did not consider each of these factors explicitly, it generally covered them. The court found that allowing the Deatons to haul the dirt away instead of filling the ditch would let them benefit from their violation of the Clean Water Act. Moreover, the court found it “doubtful that [removing the sidecast dirt] could be done in an ecologically harmless manner.” In other words, the district court found that the Deatons’ remediation proposal would likely compound the environmental damage they had already done. In light of these findings and the Clean Water Act‘s goal of “restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation‘s waters,”
V.
We affirm the district court‘s order of January 29, 2002, denying the Deatons’ motion to reconsider the issue of Clean Water Act jurisdiction and that court‘s order of February 4, 2002, requiring remediation.